You are hurt at work; Workers’ Compensation won’t approve your medical treatment and your employer says they can’t keep you job open. What are your options?
Texas Workers’ Compensation is really bad. If someone is injured at work and files a workers’ compensation claim in Texas they believe that they will be treated fairly and that their medical bills will be paid and that their treatment will be approved in a timely manner. This could not be further from the truth. What will most likely happen is the workers’ compensation insurance company will drag their feet in approving medical treatment (this is especially true of any expensive medical treatment such as surgery) will dispute the medical treatment. This causes the injured worker to be off work for a much longer time which puts their job in jeopardy. As an El Paso employment lawyer I see individuals with work injury claims who get fired because they could not get back to work in a timely manner through no fault of their own. Even if these workers have Family Medical Leave Act (FMLA) permitted time of 12 weeks of unpaid leave, the delays caused by the workers’ compensation insurance company cause them to be out well over this time and cause them to lose their job. Does this sound like bad faith on the part of the insurance company? Well even if it does, the Texas Supreme Court has said that an injured workers cannot sue for bad faith. This has only fueled the insurance companies into denying and delaying claims. Can you sue your employer if you are fired because you are out too long? This is a difficult question to answer. There are laws that do protect injured workers. The first is 451 of the Texas Labor Code which states that an employer cannot retaliate against a worker who files a workers’ compensation claim. So if the employer is treating employees injured at work differently from non-work related absences (illnesses or non work related injuries) then the employee my have a claims for wrongful termination. Also, the Americans with Disability Act (ADA) protects workers who can go back and do the essential functions of their job with or without a reasonable accommodation. The ADA also protects those workers who are “perceived as disabled” who can do their jobs. This law can actually help those injured workers who have been terminated and later receive a full release to return to work but who are not allowed to go back to work even when the employer has a job opening. It is important that if an employee who is injured on the job seek legal representation as soon as possible after a work injury. The sooner that injured work knows their rights the better chance they have of not losing their job and obtaining the medical services they are entitled to receive.